the remarkable case of the Queen v. Paty,* familiar to all lawyers, and to which at the present time a peculiar interest is attached, from its application to the case of Stockdale v. Hansard. We have not room to pursue it. It established the point, that a writ of error lies upon a Habeas Corpus. In the year 1758 it appears that many important points connected with this writ were raised, and that ten of the judges delivered their opinions on ten distinct questions put to them in relation to the existing law by the House of Lords. The details are of too professional a character to permit us to pause upon them. The last period to which our attention is directed by the learned author is 1816, when the act, commonly called after its author, Mr. Serjeant Onslow's act, was passed, the 56 G. 3, c. 100. Its object was to extend the beneficial enactment of the Habeas Corpus act to other cases than that of crime, which came alone within that act.

6

At this point the introduction closes the exposition of the history of the writ; but it contains a statement by the author,† that probably the reader will feel, on a careful consideration of the 'doctrines urged on the part of the crown, adopted almost to their 'full extent by the judges of the court of Queen's Bench, and not 'expressly negatived by the barons of the Exchequer, that the 'law of Habeas Corpus is not in a satisfactory state; and that 'if, on further consideration, the views of the court of Queen's 'Bench should be confirmed, this great writ is much less effica'cious for the protection of personal liberty than the people of 'England have hitherto fondly believed.' As the learned author, however, does not refer specifically to the positions maintained, which he conceives to have the injurious effect he here laments, we presume, on looking over the report, that there are two points in the case of the Canadians to which he intends to direct the reader's attention. 1st. That the return was considered to be sufficient in law, although it did not set out the various documents on which it claimed to justify the detention of the prisoners; and, 2nd. That as the court decided that the return is to be taken as true in fact, the only remedy left to a party applying for the writ, and unjustly imprisoned, is an action for a false return or the false imprisonment; which was an idle mockery, only capable of being used when it is of comparatively little value.

We do not profess to be lawyers; but we own we cannot but concur with Mr. Fry, in his apprehensions at the dangerous consequences which are likely to ensue, if these doctrines are to be supported by the courts on future investigation. The writ of Habeas Corpus, for instance, in the case before us, was directed to the gaoler of Liverpool, calling on him to show cause why he

*Temp. Queen Ann, 1704.

+ Introd. p. 28.

detained the Canadian prisoners. In his return, (by which we understand a legal piece of pleading, setting out the causes assigned for the detention,) he tells a certain story, which may or may not be true; but to the effect that the prisoners had confessed certain treasons, and had on their petition been pardoned, on condition of transportation; and that by a warrant of the Governor of Lower Canada, they were then in execution of their sentence. The learned counsel for the prisoners we find* objecting that the return was not sufficiently precise; and if they had grounded their argument on formal and technical points, we should not feel sufficient interest and importance attach to it, to detain our readers a moment upon it. But we own that we cannot but feel considerable force and public importance in the arguments adduced in support of this view

'It was for the court, and not the gaoler, to judge how far the documents were of a legal character, and to what extent they justified the detention. The principle of the writ of Habeas Corpus was this: that the crown, through its judges, was entitled to know why any one of its subjects was held in custody by any other; and for that purpose it was essential that the instruments on which the imprisonment was claimed to be justified, should be laid before them, that they might decide whether the legal effect of that instrument had been perverted or mistaken by the detaining party. The liberty of every English subject was secured by this necessity. To permit the person returning the cause of his imprisonment of a party applying for the writ, to state summarily what he chose to give as the legal effect of judicial proceedings, was to make him the judge of his own case, and to deprive the subject of the privilege of having his cause determined by the judges of the land.'

To this objection the court gave the following answer in their judgment :+

To this manifold objection one answer must serve. The fact is stated to the court upon the return, and we are bound to receive it as true. The party who makes the return has probably never seen the documents, but at his peril places his confidence in the captain who brought the prisoners from Canada, or in some other person; but he is bound by the assertion which he makes on their credit; and their truth may be questioned in any ulterior proceeding which it may be competent to the party to adopt.'

We confess, without pretending to be lawyers, or affecting to criticise the judgment of the court of Queen's Bench, that this sentence does appear to us fraught with danger to personal liberty. The court, forsooth, is bound to attend to a statement of facts, of

which they morally believe the party making it knows nothing! If this be good law, the sooner, we humbly venture to think, it is altered by parliament, the better. But, 2ndly. We find it contended by the crown that the return was conclusive, as to the facts contained in it, in that stage of the proceedings; and that the only remedy open to the person detained by a false return was by an action. This doctrine was, we think, powerfully attacked by the counsel for the prisoners. Surely it cannot be law. If so, we agree with Mr. Fry, the law is not in a satisfactory state,' and must be altered forthwith. We perceive in the argument a very decided and, to our mind, convincing passage, quoted from Mr. Justice Foster, on this subject. He asks, 'What remedy? An 'action against a man perhaps not worth a groat. But how re'responsible soever the officer may be, what satisfaction in damages 'is equal to the injury? Or if that were possibly to be had, what 'becomes of the action if the plaintiff should be knocked on the 'head in the service? Why truly moritur cum personâ. In short, 'he hath in this view of the case no remedy, unless you give him 'what I call the specific remedy, a right to controvert the truth of 'the return before it is too late.' We confess this seems to us a common-sense view of the case. If the court of Queen's Bench did not adopt this view, we own we think there should be a reconsideration of the dangerous consequences which must result from the contrary doctrine. As far as we can collect from the report, however, the court, in a later stage of the case, suggested that if fraud could be proved in making the return, probably they would hear affidavits in answer to it, and quash it. This is a useful limitation of their own doctrine, but we cannot but think only a palliation. For why should a man be detained on a return that is false, whether fraudulent or not? The injury is the same; and the great object of the court should be to get, not at the motives of the person making the return, but the truth of his allegations. We therefore cannot refrain from expressing our views on this subject. The topics are of the highest importance; and whatever may be the guilt or innocence of the unfortunate persons in whose case they have been raised, demand the serious reflection of every Englishman. We know that our dearest rights and most valuable privileges have been attacked in the persons of unprincipled men. Through their sides, the whole community has been often wounded. But the personal impurity of Wilks did not hinder Lord Chatham from asserting the great principles of liberty which had been invaded in his person. The real truth is, that the more indignant our feelings towards any individual may be, the more zealous we should be to prevent his being condemned on principles which, strained in his case, may be turned one day upon ourselves. The jealousy of the law, which sometimes throws a shield over the guilty, was designed for the protection of the

great body of the innocent; we should be careful, therefore, on what grounds even the guilty are condemned.

'

We have gone thus at length into this subject, because we feel that no topic more important or interesting can occupy the mind of an Englishman than the nature and provisions of that great writ which secures his personal liberty and distinguishes his country among the nations.' We find on a review of its history, that although frequently resorted to in the times of the later Plantagenets, in cases between private persons, it was not till the reigns of the Tudors that it was brought into exercise as an instrument against the crown; nor till the dynasty of the Stuarts, that its real efficacy in that respect was tested, examined, and ascertained. In the reign of Charles, the great and learned champions of the cause of liberty maintained its power, and sheltered themselves under its wing. In the reign of the second Charles, the famous statute was passed, which merely confirmed and esta blished the common law, but which has proved and become the bulwark of the freedom of England. Since that period, twice has the attention of Parliament and the country been directed to the defects, supposed and admitted, in this high remedy; once in 1758, and again in 1816. The public mind has been a third time strongly roused in relation to it, by the recent proceedings on the Canadian case. We confess we feel obliged to Mr. Fry for having preserved, in an authoritative form, the arguments and contentions which have been raised in respect to this writ. It is of the utmost importance to us all that it should be an easy, cheap, and efficacious remedy for wrongful imprisonment;that this just topic of the boasts of our constitutional writers should be, not alone in name but in reality, the resource of the oppressed, and the restraint of the powerful, so that the meanest subject of the British empire should feel himself secure under its protection against the unjust invasions of the highest and the strongest, and should be impressed with the glory of his country, which makes it no idle assertion but rests on it as a corner-stone and first principle of its constitution, that all men are equal before the law. This is indeed a distinction, and confers upon England a moral grandeur, which places her at the head of even the most enlightened and famous states. It is better calculated to secure the happiness of her people, as it is more certain to perpetuate her celebrity to future ages, than the gorgeous wealth of India, the mysterious learning of Egypt, the magnificence of ancient Persia, the exquisite art and refined philosophy of Greece, the severe virtue of Republican, or the universal power of Imperial Rome!

335

Art. VII. Historical Memorials relating to the Independents, or Congregationalists; from their Rise to the Restoration of the Monarchy, Anno 1660. By BENJAMIN HANBURY. Vol. I. Printed for the Congregational Union of England and Wales. London: Fisher, Sons, and Co. 1839.

BEFORE making a few observations on this meritorious publication, we shall take the liberty of quoting the very appropriate advertisement prefixed to it by the committee of the Congregational Union.

The committee of the Congregational Union of England and Wales have zealously promoted the publication of these Historical Memorials of the Independent churches, in which the writings of the early witnesses for the distinctive polity of our denomination are rescued from present neglect and future oblivion. In affording encouragement and aid to this interesting but laborious work, the committee have been influenced solely by an ardent zeal for those great principles, which the fathers of our denomination deduced with so much care from the Holy Scriptures, and which cannot be more effectually recommended than by the erudition, the ability, and the piety conspicuous in the works of these primitive confessors of the doctrine and the discipline still cherished by the Congregational body.

The undivided responsibility of authorship has rested upon Mr. Hanbury; and whatever honour is due to the fidelity, patience, and skill with which the materials have been collected and arranged, is exclusively his own. The committee feel assured that no one can be better qualified than their honoured coadjutor for such an undertaking, by extent of research, interest in the subject, and scrupulous accuracy in even the minutest details. They hope his labours in this work, greater than can be appreciated by those who are unacquainted with such pursuits, will meet with extensive approval and encouragement among the pastors and churches of the denomination. Nor can the committee omit to bespeak the same favour on behalf of their own solicitude in this, as in many other instances, to promote whatever may advance the enlightened attachment of the entire community to principles derived from the New Testament, handed down by our fathers with the seals of martyrdom and suffering, and dear to us as conservative of the still higher interests of saving truth, godly discipline, Christian liberty, and spiritual worship.'

The fullest critique on the volume itself would only be an extended comment on this preliminary announcement. Minutely to examine the work, or rather the goodly moiety of a work, for we have here only the first part of these Historical Memorials, would be incompatible with our present limits; and a cursory reviewal would neither be fair to the author, nor satisfactory to our readers; it will be better, therefore, to give a short account of its design